BOOTA SINGH & OTHERSversusSTATE OF HARYANA

180                       [2021]
               SUPREME COURT     4 S.C.R. 180
                              REPORTS                      [2021] 4 S.C.R.


A                         BOOTA SINGH & OTHERS
                                        v.
                            STATE OF HARYANA
                       (Criminal Appeal No. 421 of 2021)
B                               APRIL 16, 2021
            [UDAY UMESH LALIT AND K. M. JOSEPH, JJ.]
             Narcotic Drugs and Psychotropic Substances Act, 1985 –
      ss. 42 & 43 – Governing provisions, if s.42 or s.43 – Non-compliance
      of s.42 – Secret information received by PW-4 (S.I.) that accused-
C
      appellants were selling poppy straw in a vehicle – Raid conducted
      by PW-4 along with fellow officials – Accused-appellants found
      sitting in a Jeep – Notice served u/s.50 – Search led to recovery of
      poppy straw – Trial court convicted appellants u/s.15 rejecting their
      plea of acquittal on ground of non-compliance of s.42 – The trial
D     court held that s.42 was inapplicable, and that the case was covered
      by s.43 as recovery was effected from the appellants while they
      were sitting on road in a jeep at a public place – Conviction
      confirmed by High Court, which affirmed the view of trial court –
      On appeal, held: Evidence showed that the vehicle was not a public
      conveyance but was a vehicle belonging to one of the accused –
E
      Registration Certificate of the vehicle also did not indicate it to be
      a Public Transport Vehicle – Explanation to s.43 showed that a
      private vehicle would not come within the expression “public place”
      as explained in s.43 – Thus, the instant case would not come u/s.43
      but would be governed by provisions of s.42 – However, on facts,
F     s.42 having not been complied with at all, the appellants were
      entitled to acquittal.
            Narcotic Drugs and Psychotropic Substances Act, 1985 – s.43
      – Expression “public place” as explained in s.43 – Ambit of – Held:
      Explanation to s. 43 shows that a private vehicle would not come
G     within the expression “public place” – Words and Phrases –
      Expression “public place”.
            Narcotic Drugs and Psychotropic Substances Act, 1985 – s.42
      – Requirements of – Substantial or adequate compliance vis-à-vis
      total non-compliance – Held: Total non-compliance of s.42 is
H
                                       180
      BOOTA SINGH & OTHERS v. STATE OF HARYANA                          181


impermissible – The rigor of s.42 may get lessened in situations        A
dealt with in Karnail Singh case but in no case, total non-compliance
of s.42 can be accepted.
      Allowing the appeal, the Court
      HELD : 1.1. The evidence in the present case clearly shows
that the vehicle was not a public conveyance but was a vehicle          B
belonging to one the accused-appellants. The Registration
Certificate of the vehicle, which has been placed on record also
does not indicate it to be a Public Transport Vehicle. The
explanation to Section 43 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 shows that a private vehicle would not come        C
within the expression “public place” as explained in Section 43.
The relevant provision would not be Section 43 but the case would
come under Section 42. [Para 12][188-E-G]
      1.2. It is an admitted position that there was total non-
compliance of the requirement of Section 42. Total non-                 D
compliance of Section 42 is impermissible. The rigor of Section
42 may get lessened in situations dealt with in the conclusion
drawn by this Court in Karnail Singh but in no case, total non-
compliance of Section 42 can be accepted. In the circumstances,
the accused-appellants are acquitted of the charge levelled against
them. [Paras 13, 14 and 15][188-G-H; 189-A-B]                           E

      Karnail Singh v. State of Haryana (2009) 8 SCC 539:
      [2009] 11 SCR 470 – followed.
      State of Rajasthan v. Jagraj Singh alias Hansa (2016)
      11 SCC 687: [2016] 4 SCR 451– relied on.                          F
      Sukhdev Singh v. State of Haryana, (2013) 2 SCC 212
      – referred to.
                       Case Law Reference
[2009] 11 SCR 470           followed                    Para 8
                                                                        G
[2016] 4 SCR 451            relied on                   Para 8
(2013) 2 SCC 212            referred to                 Para 8


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182            SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 421 of 2021.
            From the Judgment and Order dated 03.03.2020 of the High Court
      of Punjab and Haryana at Chandigarh in CRA-S-1759-SB-2004.
            Praveen Kumar, Rajnish Kumar Jha, Advs. for the Appellants.
B           Rakesh Kumar Mudgal, AAG., Kailash Kumar Mudgal, Dr.
      Monika Gusain, Advs. for the Respondent.
            The Judgment of the Court was delivered by
             UDAY UMESH LALIT, J.
             1. This appeal challenges the judgment and final order dated
C     03.03.2020 passed by the High Court of Punjab & Haryana at Chandigarh
      dismissing CR A-S-1759-SB-2004 preferred by the appellants and
      affirming their conviction and sentence under Section 15 of the Narcotic
      Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act” for
      short).
D            2. The basic facts and the case of prosecution as recorded by the
      High Court in its judgment are as under:
             “2. The facts as put forth by the prosecution are to the effect that
             on 28.01.2002, S.I. Nand Lal alongwith fellow police officials were
             present at the canal bridge on Surtia-Rori road, where he received
E            a secret information to the effect that the accused are selling
             poppy straw in a vehicle bearing registration number GUD-4997
             on a ‘kacha path’ at Rori-Jatana road and they can be apprehended
             if raid is conducted. Accordingly, a raid was conducted and the
             accused were found sitting in the jeep bearing registration number
             GUD-4997 at the aforesaid place. Major Singh, co-accused of
F            the appellants, managed to slip away, whereas, the appellants were
             apprehend at the spot. They were found sitting upon two bags
             kept in the said jeep. Notices under Section 50 of the Act were
             served upon them but the appellants reposed faith upon the police
             officials. The search of the bags led to the recovery of poppy
G            straw. One bag was containing 39 kg of poppy straw and the
             second bag was containing 36 kg of poppy straw. Two samples
             weighing 100 grams each were separated from each bag. The
             sample parcels and the bulk parcels were converted into separate
             parcels and sealed with the seal bearing impression ‘CS’. The
             jeep alongwith weighing scale, two weights of 500 grams each
H            were also recovered and taken into possession vide recovery
      BOOTA SINGH & OTHERS V. STATE OF HARYANA                               183
                [UDAY UMESH LALIT, J.]

      memos. Ruqa was recorded and dispatched to the police station          A
      on the basis thereof, the FIR was registered. Subsequently, Major
      Singh, co-accused, was arrested and on completion of investigation,
      the challan was presented in the Court.
      3. The charge was framed. The contents thereof were read over
      and explained to the appellants, to which they pleaded not guilty      B
      and claimed trial.
      4. In support of its allegations, the prosecution has examined four
      witnesses. Inspector Nand Lal (PW4) has conducted the search
      of the accused in the presence of ASI Jaswant Singh (PW3). The
      case property was retained in the malkhana by Kuldeep Singh            C
      (PW2) and Constable Gurjit Singh (PW 1) took the sample parcels
      to the FSL. The prosecution has also 2 of 10 produced documentary
      evidence to substantiate the version as put forth by it.”
      3. By order dated 15.03.2002, on an application preferred by him,
the vehicle in question was released by the Trial Court in favour of         D
accused Gurdeep Singh.
      4. During trial, PW4 Inspector Nand Lal, the Investigating Officer
deposed in his examination-in-chief as under:
      “On 28.1.2002 I was posted as Sub Inspector/SHO in Police Station
      Rori. On that day, I alongwith ASI Jaswant Singh and other police      E
      officials were present at the canal bridge on Surtia Rori-road in
      connection with patrolling. I received a secret information that all
      the accused are selling poppy straw in a vehicle bearing no.GUD-
      4997 upon a ‘Kacha Rasta at Rori-Jatana road and can be
      apprehended red handed if a raid is conducted. I tried to join two
      persons who were going to water the fields in the investigations       F
      but they refused. Thereafter I organised a raiding party and
      conducted a raid. All the accused were found in the jeep bearing
      no GUD-4997, upon a kacha rasta by the side of Rori-Jatana
      Road, Upon seeing the police party, one of the accused, namely,
      Major fled the spot. I knew the accused Major Singh since long.        G
      Remaining three accused were apprehended at the spot. Accused
      Boota Singh, Gurdeep Singh and Gurmahender Singh alias Mitta
      were found sitting upon two bags lying in the said Jeep. Thereafter,
      I served notices Ex.PC, Ex.PD and Ex.PE upon accused Gurdeep,
      Boota and Gurmahender Singh respectively u/s 50 of NDPS asking
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184             SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A            them as to whether they desired their search before a gazetted
             officer or a Magistrate. Vide replies Exl.PC/1.1, Ex.PDA and
             Ex.PE/I, accused Gurdeep Singh, Boota Singh and Gurmahender
             Singh alias Mitta declined the offer and reposed faith in the police.
             …”
B            In his cross-examination, the witness stated:-
             “I did not record the secret information in writing. Wireless in my
             jeep was out of order at that time. I did not obtain any search
             warrants for conducting the search of the jeep of accused during
             night hours. I did not record any ground for not obtaining the
             requisite search warrants in my police file. The writing work was
C            done while sitting in the jeep.”
             5. After considering the evidence on record, the Trial Court by its
      judgment and order dated 12.08.2004, acquitted accused Major Singh
      but convicted accused Boota Singh, Gurdeep Singh and Gurmohinder
      Singh, under Section 15 of the NDPS Act and sentenced them to suffer
D     rigorous imprisonment for 10 years with imposition of fine in the sum of
      Rs.1,00,000/-, in default whereof they were directed to undergo further
      rigorous imprisonment for a period of two years.
             On the question of applicability of Section 42 of the NDPS Act,
      the Trial Court stated:-
E            “ … Learned counsel sought acquittal of accused due to non-
             compliance of Section 42 of N.D.P.S. Act. However, above said
             argument could help the accused if recovery had been effected
             from the house, building etc. of the accused. Admittedly, recovery
             in question was effected from the accused while they were sitting
             on road in a jeep at a public place. Therefore, case of accused
F            would be covered by Section 43 of N.D.P.S. Act and not by Section
             42 of N.D.P.S. Act. Under these circumstances, argument of
             learned counsels for accused is overruled.”
             6. The convicted accused, being aggrieved, preferred the
      aforementioned Criminal Appeal before the High Court, which was
      dismissed by the High Court.
G
             On the question whether the matter came within the scope of
      Section 42 of the NDPS Act, the High Court observed:-
             14. Furthermore, in the case in hand, the accused were present in
             a jeep on a public path and in such circumstance, the provisions of
             Section 43 and not of 42 of the Act come into play. As per
H            explanation to Section 43 of the Act, the public place includes a
      BOOTA SINGH & OTHERS V. STATE OF HARYANA                                185
                [UDAY UMESH LALIT, J.]

       conveyance also. Section 43 of the Act contemplates a seizure          A
       made in a public place or in transit. As such, Section 42 of the Act
       is not applicable to the facts of the present case …”
       7. In this appeal preferred by Boota Singh, Gurdeep Singh and
Gurmohinder Singh challenging the correctness of the decisions of the
courts below, we heard Mr. Praveen Kumar, learned counsel for the             B
appellants and Mr. Rakesh Mudgal, learned AAG for the State.
       8. Mr. Praveen Kumar submitted inter alia:
       a.     The vehicle in question was a private vehicle belonging to
              accused Gurdeep Singh and was not a public conveyance,
              though parked on a public road.                                 C
       b.     As accepted by PW4 Inspector Nand Lal, the secret
              information was not recorded in writing nor any grounds
              were recorded for not obtaining the requisite search
              warrants.
       c.     The instant case would not be come under Section 43 but
                                                                              D
              would be governed by the provisions of Section 42 of the
              NDPS Act.
       d.     Section 42 having not been complied with at all, the
              appellants were entitled to acquittal in terms of law laid
              down in the Constitution Bench decision of this Court in
              Karnail Singh v. State of Haryana1, followed in subsequent      E
              decisions in Sukhdev Singh v. State of Haryana2, and,
              State of Rajasthan v. Jagraj Singh alias Hansa3.
       9. Countering the submissions, Mr. Rakesh Mudgal, learned AAG
submitted that the courts below were right in observing that the instant
case would be governed by the provisions of Section 43 of the NDPS            F
Act. It was however accepted by the learned counsel that there was no
material on record to conclude that the vehicle in question was a public
conveyance.
       10. In Karnail Singh1, the Constitution Bench of this Court
concluded:-                                                                   G
       “35. In conclusion, what is to be noticed is that Abdul
       Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require
1
  (2009) 8 SCC 539
2
  (2013) 2 SCC 212
3
  (2016) 11 SCC 687
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186      SUPREME COURT REPORTS                            [2021] 4 S.C.R.


A     literal compliance with the requirements of Sections 42(1) and
      42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC
      (Cri) 1217] hold that the requirements of Sections 42(1) and 42(2)
      need not be fulfilled at all. The effect of the two decisions was as
      follows:
B        (a) The officer on receiving the information [of the nature
         referred to in sub-section (1) of Section 42] from any person
         had to record it in writing in the register concerned and forthwith
         send a copy to his immediate official superior, before proceeding
         to take action in terms of clauses (a) to (d) of Section 42(1).

C        (b) But if the information was received when the officer was
         not in the police station, but while he was on the move either
         on patrol duty or otherwise, either by mobile phone, or other
         means, and the information calls for immediate action and any
         delay would have resulted in the goods or evidence being
         removed or destroyed, it would not be feasible or practical to
D        take down in writing the information given to him, in such a
         situation, he could take action as per clauses (a) to (d) of Section
         42(1) and thereafter, as soon as it is practical, record the
         information in writing and forthwith inform the same to the
         official superior.
E        (c) In other words, the compliance with the requirements of
         Sections 42(1) and 42(2) in regard to writing down the
         information received and sending a copy thereof to the superior
         officer, should normally precede the entry, search and seizure
         by the officer. But in special circumstances involving emergent
F        situations, the recording of the information in writing and sending
         a copy thereof to the official superior may get postponed by a
         reasonable period, that is, after the search, entry and seizure.
         The question is one of urgency and expediency.
         (d) While total non-compliance with requirements of sub-
         sections (1) and (2) of Section 42 is impermissible, delayed
G
         compliance with satisfactory explanation about the delay will
         be acceptable compliance with Section 42. To illustrate, if any
         delay may result in the accused escaping or the goods or
         evidence being destroyed or removed, not recording in writing
         the information received, before initiating action, or non-sending
H
      BOOTA SINGH & OTHERS V. STATE OF HARYANA                                    187
                [UDAY UMESH LALIT, J.]

          of a copy of such information to the official superior forthwith,       A
          may not be treated as violation of Section 42. But if the
          information was received when the police officer was in the
          police station with sufficient time to take action, and if the
          police officer fails to record in writing the information received,
          or fails to send a copy thereof, to the official superior, then it
                                                                                  B
          will be a suspicious circumstance being a clear violation of
          Section 42 of the Act. Similarly, where the police officer does
          not record the information at all, and does not inform the official
          superior at all, then also it will be a clear violation of Section 42
          of the Act. Whether there is adequate or substantial compliance
          with Section 42 or not is a question of fact to be decided in           C
          each case. The above position got strengthened with the
          amendment to Section 42 by Act 9 of 2001.”
                                                          (Emphasis added)
       11. In Jagraj Singh alias Hansa3, the facts were more or less
identical. In that case, the vehicle (as observed in para 5.3 of the decision)    D
was not a public transport vehicle. After considering the relevant
provisions and some of the decisions of this Court including the decision
in Karnail Singh1 , it was observed:-
       “14. What Section 42(2) requires is that where an officer takes
       down an information in writing under sub-section (1) he shall send         E
       a copy thereof to his immediate officer senior. The communication
       Ext. P-15 which was sent to the Circle Officer, Nohar was not as
       per the information recorded in Ext. P-14 and Ext. P-21. Thus, no
       error was committed by the High Court in coming to the conclusion
       that there was breach of Section 42(2).                                    F
                       .....        .....       .....
       16. In this context, it is relevant to note that before the Special
       Judge also the breach of Sections 42(1) and 42(2) was contended
       on behalf of the defence. In para 12 of the judgment the Special
       Judge noted the above arguments of defence. However, the                   G
       arguments based on non-compliance with Section 42(2) were
       brushed aside by observing that discrepancy in Ext. P-14 and
       Ext. P-15 is totally due to clerical mistake and there was
       compliance with Section 42(2). The Special Judge coming to
       compliance with the proviso to Section 42(1) held that the vehicle
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188            SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A            searched was being used to transport passengers as has been
             clearly stated by its owner Vira Ram, hence, as per the
             Explanation to Section 43 of the Act, the vehicle was a public
             transport vehicle and there was no need of any warrant or
             authority to search such a vehicle. The High Court has reversed
             the above findings of the Special Judge. We thus, proceed to
B            examine as to whether Section 43 was attracted in the present
             case which obviated the requirement of Section 42(1) proviso.
                            .....        .....        .....
             29. After referring to the earlier judgments, the Constitution
             Bench came to the conclusion that non-compliance with
C            requirement of Sections 42 and 50 is impermissible whereas delayed
             compliance with satisfactory explanation will be acceptable
             compliance with Section 42. The Constitution Bench noted the
             effect of the aforesaid two decisions in para 5. The present is not
             a case where insofar as compliance with Section 42(1) proviso
             even an argument based on substantial compliance is raised there
D            is total non-compliance with Section 42(1) proviso. As observed
             above, Section 43 being not attracted, search was to be conducted
             after complying with the provisions of Section 42. We thus, conclude
             that the High Court has rightly held that non-compliance with
             Section 42(1) and Section 42(2) were proved on the record and
E            the High Court has not committed any error in setting aside the
             conviction order.”
                                                               (Emphasis added)
             12. The evidence in the present case clearly shows that the vehicle
      was not a public conveyance but was a vehicle belonging to accused
      Gurdeep Singh. The Registration Certificate of the vehicle, which has
F
      been placed on record also does not indicate it to be a Public Transport
      Vehicle. The explanation to Section 43 shows that a private vehicle
      would not come within the expression “public place” as explained in
      Section 43 of the NDPS Act. On the strength of the decision of this
      Court in Jagraj Singh alias Hansa3, the relevant provision would not
G     be Section 43 of the NDPS Act but the case would come under Section
      42 of the NDPS Act.
             13. It is an admitted position that there was total non-compliance
      of the requirements of Section 42 of the NDPS Act.
             14. The decision of this Court in Karnail Singh1 as followed in
      Jagraj Singh alias Hansa3, is absolutely clear. Total non-compliance
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       BOOTA SINGH & OTHERS V. STATE OF HARYANA                                189
                 [UDAY UMESH LALIT, J.]

of Section 42 is impermissible. The rigor of Section 42 may get lessened       A
in situations dealt with in the conclusion drawn by this Court in Karnail
Singh1 but in no case, total non-compliance of Section 42 can be
accepted.
      15. In the circumstances, the courts below fell in error in rejecting
the submissions advanced on behalf of the appellants. We, therefore,           B
allow this appeal, set-aside the view taken by the High Court and acquit
the appellants of the charge levelled against them. The appellants be
released forthwith unless their custody is required in connection with
any other offence.

                                                                               C
Bibhuti Bhushan Bose                                         Appeal allowed.




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